By: Kim Ives - Haiti Liberte

On January 9 in Brooklyn, New York, former death-squad leader Emmanuel “Toto” Constant, 51, rejected a plea bargain that would have sentenced him to three to nine years for his role in a mortgage fraud crime ring.

Under the deal for charges brought in Kings County, Constant, with time served and good behavior, would have been eligible for parole in July, at which time the Department of Homeland Security would have deported him back to Haiti.

Instead, Toto elected to go to trial, where he risks a maximum sentence of 45 years if a jury finds him guilty on all counts of grand larceny, forgery, and falsifying business records. Arrested in July 2006, Constant has been held in the Coxsackie Prison in upstate New York, serving time on a one to three year sentence for pleading guilty in a deal struck last February on mortgage fraud charges in Suffolk County on Long Island.

Toto Constant is the founder and former leader of the CIA-supported death-squad known as the Revolutionary Front for the Advancement and Progress of Haiti (FRAPH). Assembled by Constant in 1993 during the first coup d’état against President Jean-Bertrand Aristide, FRAPH militants carried out murder, rape, arson and violent demonstrations to terrorize the Haitian people. Some 5,000 Haitians are estimated to have died during the 1991 to 1994 coup, many at the hands of the FRAPH.

New York State Supreme Court Judge Abraham Gerges first offered Constant the reduced sentence deal in November (see Haïti Liberté, Vol. 1, No. 18, 11/21/2007) after denying him a more lenient plea bargain last May. Lawyers Jennie Green from the Center for Constitutional Rights (CCR) and Mario Joseph from the Office of International Lawyers (BAI) in Haiti both presented background documentation and testimony of FRAPH’s heinous human rights crimes at the May 21 hearing which swayed Judge Gerges to rule that Constant should stand trial.

This was good news to the human rights and community groups in Haiti and the U.S. that strongly opposed Washington’s desire to deport Constant back to Haiti last June after harboring him in the U.S. for 12 years.

“I am one of the first people who would call for Toto Constant to be sent back to Haiti to stand trial,” said Mario Joseph before the court that day in May. “There are many victims in Haiti who would like to see him tried there. But the broken-down condition of justice and prisons in Haiti makes it unwise to return him now.”

Joseph participated in the landmark Raboteau trial in 2000 where FRAPH’s high command was convicted in absentia of human rights crimes and sentenced to life in jail. Joseph pointed out, among other things, that the FRAPH’s No. 2, Jodel Chamblain, was now freely walking Haiti’s streets having been cleared of the verdict against him through a midnight trial under the coup regime set up after President Jean-Bertrand Aristide was overthrown and kidnapped by U.S. soldier on Feb. 29, 2004.

Constant insisted on responding to Joseph, despite the judge’s warnings that his words could be used against him. He claimed that Chamblain’s trial “came under a government that was established by and supported by the U.S. government” and that it “was not a kangaroo court or something that happened at night; it happened in broad daylight. And it was broadcast by the international media.” The historical record contradicts the two latter statements, and human rights groups like Amnesty International condemned the trial as a sham.

Although Chamblain’s trial only dealt with the in absentia convictions against him, Toto claimed that “all those allegations [of human rights crimes] were dismissed for Mr. Chamblain as well as myself,” adding that “I’ve never ordered or committed any violence in my life.”

He went on to claim that “due to my relationship with the U.S. government, with the White House, I was used as a scapegoat.” He painted himself as a peacemaker saying “I was proposing reconciliation between all the political parties... There is no proof whatsoever that can link me to any kind of massacre, execution, kidnapping or rape or anything of this sort.”

Evoking the 1983 murder of Filipino politician Benigno Aquino, Constant said that “everybody knows that if I ever touch Haiti, it’s not the prison I will escape; I will be executed at the airport.” He also insisted that “anybody that knows my story knows that I am an innocent man caught in a bad situation.”

His voice cracking with emotion, Toto Constant accused the CCR and other human rights groups of “exaggerating the situation.”

“I have been persecuted by the Center for Constitutional Rights since I’ve been in the United States,” he said. “They came [to demonstrate] in front of my house. My mother is sick because of that.”

He ended on an incoherent but revealing note. “It would be a very unjust situation to have an innocent man executed because all they need is for us to go to trial and reveal certain sensitive information regarding my attachment with the CIA,” he said.

Constant avoided accepting the court’s most recent plea offer by not showing up at two previous hearings in November and December. As he rejected the deal on Jan. 9, Judge Gerges warned him that all deals would now be “taken off the table.” Proceedings for Constant’s trial are to begin Feb. 13.

Meanwhile, Toto Constant, from his jail cell, has been working to overturn a $19 million civil judgement which three anonymous Haiti women represented by the CCR and the California-based Center for Justice and Accountability (CJA) won against him in August 2006 for crimes against humanity, attempted summary execution, rape and other torture..

On Sept. 27, 2007, Constant filed a motion to void the judgement, claiming that it was filed past the 10 year statute of limitations for crimes of torture and that the suit should be brought, not in U.S. District court, but in Haiti.

“He’s wrong on both counts,” responded Moira Feeney, the CJA lawyer who worked on the case, “We filed in time and he is in the U.S., so we can’t bring the case in Haiti. Even to this day, it is not safe for our clients to pursue a case in Haiti. He had ample opportunity to respond in this case and chose not to. For a year and half, he did nothing to defend himself in this case.”

Judge Sidney Stein, who ruled in Doe vs. Constant in 2006, is now reviewing the motion.

Constant in now represented by Samuel Karlinen after parting with his previous lawyer, Marie Pereira, over “irreconcilable differences about legal strategy” (see Haïti Liberté, Vol. 1, No. 18, 11/21/2007).

Although Toto Constant has admitted his guilt for mortgage fraud in Suffolk County, that plea deal cannot be used to buttress the prosecution that will now be brought in Kings County, a separate jurisdiction.

At Constant’s arraignment in Suffolk County in July 2006, Pete Zanolin, the New York State assistant deputy attorney general who investigated and put together the case against Constant and his accomplices, said that the State’s case against Constant in both Suffolk and Kings counties was “very, very strong” and that “it is only one of many other schemes they had which we could also prosecute; we just had to pick one.” Constant’s accomplices all chose plea bargains.

“Emmanuel Constant deserves a long sentence for the atrocities he committed against the people of Haiti,” said the CCR’s senior attorney Jennie Green. “Going to trial in the mortgage fraud case means that he will face a serious penalty for his economic crimes against the people of New York. We hope that one day, when the justice and prison systems in Haiti are stable, Constant will also face charges in Haiti for the campaign of rape and other crimes against humanity there.”